An Essay on the Trial By Jury

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3. That these presumptions shall be overcome, in a court ofjustice, only by evidence, the sufficiency of which, and by law,the justice of which, are satisfactory to the under- standing andconsciences of all the jurors.

These are the bases on which the trial by jury places theproperty, liberty, and rights of every individual.

But some one will say, if these are the principles of the trial byjury, then it is plain that justice must often fail to be done.Admitting, for the sake of the argument, that this may be true,the compensation for it is, that positive injustice will alsooften fail to be done; whereas otherwise it would be donefrequently. The very precautions used to prevent injustice beingdone, may often have the effect to prevent justice being done. Buare we, therefore, to take no precautions against injustice? By nomeans, all will agree. The question then arises Does the trialby jury, as here explained, involve such extreme and unnecessaryprecautions against injustice, as to interpose unnecessaryobstacles to the doing of justice? Men of different minds may verylikely answer this question differently, according as they havemore or less confidence in the wisdom and justice of legislators,the integrity and independence of judges, and the intelligence ofjurors. This much, however, may be said in favor of theseprecautions, viz., that the history of the past, as well as ourconstant present experience, prove how much injustice may, andcertainly will, be done, systematically and continually, for thewant of these precautions that is, while the law is authoritatively made and expounded by legislators and judges. On the other hand, we have no such evidence of how much justice may fail to be done, by reason of these precautions that is, by reason of the law being left to the judgments and consciences of jurors. We can determine the former point that is, how much positive injustice is done under the first of these two systems because the system is in full operation; but we cannot determine how much justice would fail to be done under the latter system, because we have, in modern times, had no experience of the use of the precautions themselves. In ancient times, when these precautions were nominally in force, such was the tyranny of kings, and such the poverty, ignorance, and the inability of concert and resistance, on the part of the people, that the system had no full or fair operation. It, nevertheless, under all these disadvantages, impressed itself upon the understandings, and imbedded itself in the hearts, of the people, so as no other system of civil liberty has ever done.

But this view of the two systems compares only the injustice done,and the justice omitted to be done, in the individual cases adjudged, without looking beyond them. And some persons might, onfirst thought, argue that, if justice failed of being done underthe one system, oftener than positive injustice were done underthe other, the balance was in favor of the latter system. But sucha weighing of the two systems against each other gives no trueidea of their comparative merits or demerits; for, possibly, inthis view alone, the balance would not be very great in favor ofeither. To compare, or rather to contrast, the two, we mustconsider that, under the jury system, the failures to do justicewould be only rare and exceptional cases; and would be owingeither to the intrinsic difficulty of the questions, or to thefact that the parties had. transacted their business in a mannerunintelligible to the jury, and the effects would be confined tothe individual or individuals interested in the particular suits.No permanent law would be established thereby destructive of therights of the people in other like cases. And the people at largewould continue to enjoy all their natural rights as before. Butunder the other system, whenever an unjust law is enacted by thelegislature, and the judge imposes it upon the jury asauthoritative, and they give a judgment in accordance therewith,the authority of the law is thereby established, and the wholepeople are thus brought under the yoke of that law; because theythen understand that the law will be enforced against them infuture, if they presume to exercise their rights, or refuse tocomply with the exactions of the law. In this manner all unjustlaws are established, and made operative against the rights of thepeople.

The difference, then, between the two systems is this: Under theone system, a jury, at distant intervals, would (not enforce anypositive injustice, but only) fail of enforcing justice, in a darkand difficult case, or in consequence of the parties not havingtransacted their business in a manner intelligible to a jury; andthe plaintiff would thus fail of obtaining what was rightfully duehim. And there the matter would end, for evil, though not forgood; for thenceforth parties, warned, of the danger of losingtheir rights, would be careful to transact their business in amore clear and intelligible manner. Under the other system thesystem of legislative and judicial authority positive injusticeis not only done in every suit arising under unjust laws, thatis, men's property, liberty, or lives are not only unjustly takenon those particular judgments, but the rights of the whole peopleare struck down by the authority of the laws thus enforced, and awide-sweeping tyranny at once put in operation.

But there is another ample and conclusive answer to the argumentthat justice would often fail to be done, if jurors were allowedto be governed by their own consciences, instead of the directionof the justices, in matters of law. That answer is this:

Legitimate government can be formed only by the voluntaryassociation of all who contribute to its support. As a voluntaryassociation, it can have for its objects only those things inwhich the members of the association are all agreed. If,therefore, there be any justice, in regard to which all theparties to the government are not agreed, the objects of theassociation do not extend to it. [3]

If any of the members wish more than this, if they claim to haveacquired a more extended knowledge of justice than is common toall, and wish to have their pretended discoveries carried intoeffect, in reference to themselves, they must either form aseparate association for that purpose, or be content to wait untilthey can make their views intelligible to the people at large.They cannot claim or expect that the whole people shall practisethe folly of taking on trust their pretended superior knowledge,and of committing blindly into their hands all their owninterests, liberties, and rights, to be disposed of on principles,the justness of which the people themselves cannot comprehend.

A government of the whole, therefore, must necessarily confineitself to the administration of such principles of law as all thepeople, who contribute to the support of the government, cancomprehend and see the justice of. And it can be confined withinthose limits only by allowing the jurors, who represent all theparties to the compact, to judge of the law, and the justice ofthe law, in all cases whatsoever. And if any justice be leftundone, under these circumstances, it is a justice for which thenature of the association does not provide, which the associationdoes not undertake to do, and which, as an association, it isunder no obligation to do.

The people at large, the unlearned and common people, havecertainly an indisputable right to associate for the establishmentand maintenance of such a government as they themselves see thejustice of, and feel the need of, for the promotion of their owninterests, and the safety of their own rights, without at the sametime surrendering all their property, liberty, and rights into thehands of men, who, under the pretence of a superior andincomprehensible knowledge of justice, may dispose of suchproperty, liberties, and rights, in a manner to suit their ownselfish and dishonest purposes.

If a government were to be established and supported solely bythat portion of the people who lay claim to superior knowledge,there would be some consistency in their saying that the commonpeople should not be received as jurors, with power to judge ofthe justice of the laws. But so long as the whole people (or allthe male adults) are presumed to be voluntary parties to thegovernment, and voluntary contributors to it support, there is noconsistency in refusing to any one of them more than to anotherthe right to sit as juror, with full power to decide for himselfwhether any law that is proposed to be enforced in any particularcase, be within the objects of the association.

The conclusion, therefore, is, that, in a government formed byvoluntary association, or on the theory of voluntary association,and voluntary support, (as all the North American governmentsare,) no law can rightfully be enforced by the association in itscorporate capacity, against the goods, rights, or person of anyindividual, except it be such as all the members of theassociation agree that it may enforce. To enforce any other law,to the extent of taking a man's goods, rights, or person, would bemaking some of the parties to the association accomplices in whatthey regard as acts of injustice. It would also be making themconsent to what they regard as the destruction of their ownrights. These are things which no legitimate system or theory ofgovernment can require of any of the parties to it.

The mode adopted, by the trial by jury, for ascertaining whetherall the parties to the government do approve of a particular law,is to take twelve men at random from the whole people, and accepttheir unanimous decision as representing the opinions of thewhole. Even this mode is not theoretically accurate; fortheoretical accuracy would require that every man, who was aparty to the government, should individually give his consent to theenforcement of every law in every separate case. But such a thingwould be impossible in practice. The consent of twelve men istherefore taken instead; with-the privilege of appeal, and (incase of error found by the appeal court) a new trial, to guardagainst possible mistakes. This system, it is assumed, willascertain the sense of the whole people "the country" withsufficient accuracy for all practical purposes, and with as muchaccuracy as is practicable without too great inconvenience andexpense.

5. Another objection that will perhaps be made to allowing jurorsto judge of the law, and the justice of the law, is, that the lawwould be uncertain.

If, by this objection, it be meant that the law would be uncertainto the minds of the people at large, so that they would not knowwhat the juries would sanction and what condemn, and would nottherefore know practically what their own rights and libertieswere under the law, the objection is thoroughly baseless andfalse. No system of law that was ever devised could be so entirelyintelligible and certain to the minds of the people at large asthis. Compared with it, the complicated systems of law that arecompounded of the law of nature, of constitutional grants, ofinnumerable and incessantly changing legislative enactments, andof countless and contradictory judicial decisions, with no uniformprinciple of reason or justice running through them, are among theblindest of all the mazes in which unsophisticated minds were everbewildered and lost. The uncertainty of the law under thesesystems has become a proverb. So great is this uncertainty, thatnearly all men, learned as well as unlearned, shun the law astheir enemy, instead of resorting to it for protection. Theyusually go into courts of justice, so called, only as men go intobattle when there is no alternative left for them. And even thenthey go into them as men go into dark labyrinths and caverns with no knowledge of their own, but trusting wholly to theirguides. Yet, less fortunate than other adventurers, they can havelittle confidence even in their guides, for the reason that theguides themselves know little of the mazes they are threading.They know the mode and place of entrance; but what they willmeet with on their way, and what will be the time, mode, place, or condition of their exit; whether they will emerge into a prison,or not; whether wholly naked and destitute, or not; whether withtheir reputations left to them, or not; and whether in time oreternity; experienced and honest guides rarely venture to predict.Was there ever such fatuity as that of a nation of men madly benton building up such labyrinhs as these, for no other purpose thanthat of exposing all their rights of reputation, property, liberty, and life, to the hazards of being lost in them, instead of being content to live in the light of the open day of their own understandings?

What honest, unsophisticated man ever found himself involved in a lawsuit, that he did not desire, of all things, that his causemight be judged of on principles of natural justice, as thoseprinciples were understood by plain men like himself? He wouldthen feel that he could foresee the result. These plain men arethe men who pay the taxes, and support the government. Whyshould they not have such an administration of justice as they desire, and can understand?

If the jurors were to judge of the law, and the justice of thelaw, there would be something like certainty in the administrationof justice, and in the popular knowledge of the law, and menwould govern themselves accordingly. There would be something like certainty, because every man has himself something like definite and clear opinions, and also knows something of the opinions of his neighbors, on matters of justice. And he would know that no statute, unless it were so clearly just as to command the unanimous assent of twelve men, who should be taken at randomfrom the whole community, could be enforced so as to take from himhis reputation, property, liberty, or life. What greater certainty canmen require or need, as to the laws under which they are to live?If a statute were enacted by a legislature, a man, in order to know what was its true interpretation, whether it were constitutional, and whether it would be enforced, would not be under the necessity of waiting for years until some suit had arisen and been carried through all the stages of judicial proceeding, to a final decision. He would need only to use his own reason as to its meaning and its justice, and then talk with his neighbors on the same points. Unless he found them nearly unanimous in their interpretation and approbation of it, he would conclude that juries would not unite in enforcing it, and that it would consequently be a dead letter. And he would be safe in coming to this conclusion.

There would be something like certainty in the administration ofjustice, and in the popular knowledge of the law, for the furtherreason that there would be little legislation, and men's rightswould be left to stand almost solely upon the law of nature, orwhat was once called in England "the common law," (before somuch legislation and usurpation had become incorporated into thecommon law,) in other words, upon the principles of natural justice.Of the certainty of this law of nature, or the ancient Englishcommon law, I may be excused for repeating here what, I havesaid on another occasion.

"Natural law, so far from being uncertain, when compared withstatutory and constitutional law, is the only thing that gives anycertainty at all to a very large portion of our statutory andconstitutional law. The reason is this. The words in whichstatutes and constitutions are written are susceptible of so manydifferent meanings, meanings widely different from, oftendirectly opposite to, each other, in their bearing upon men'srights, that, unless there were some rule of interpretation fordetermining which of these various and opposite meanings are thetrue ones, there could be no certainty at all as to the meaning ofthe statutes and constitutions themselves. Judges could makealmost anything they should please out of them. Hence thenecessity of a rule of interpretation. And this rule is, that thelanguage of statutes and constitutions shall be construed, asnearly as possible, consistently with natural law.

The rule assumes, what is true, that natural law is a thingcertain in itself; also that it is capable of being learned. Itassumes, furthermore, that it actually is understood by thelegislators and judges who make and interpret the written law. Of necessity, therefore, it assumes further, that they (the legislators and judges) are incompetent to make and interpret thewritten law, unless they previously understand the natural lawapplicable to the same subject. It also assumes that the peoplemust understand the natural law, before they can understated thewritten law.

It is a principle perfectly familiar to lawyers, and one that mustbe perfectly obvious to every other man that will reflect amoment, that, as a general rule, no one can know what the writtenlaw is, until he knows what it ought to be; that men are liable tobe constantly misled by the various and conflicting senses of thesame words, unless they perceive the true legal sense in which thewords ought to be taken. And this true legal sense is the sensethat is most nearly consistent with natural law of any that thewords can be made to bear, consistently with the laws of language,and appropriately to the subjects to which they are applied.

Though the words contain the law, the words themselves are notthe law. Were the words themselves the law, each single written law would be liable to embrace many different laws, to wit, as many different laws as there were different senses, and differentcombinations of senses, in which each and all the words werecapable of being taken.

Take, for example, the Constitution of the United States. Byadopting one or another sense of the single word "free," thewhole instrument is changed. Yet the word free is capable of someten or twenty different senses. So that, by changing the sense ofthat single word, some ten or twenty different constitutions couldbe made out of the same written instrument. But there are, we willsuppose, a thousand other words in the constitution, each of whichis capable of from two to ten different senses. So that, bychanging the sense of only a single word at a time, severalthousands of different constitutions would be made. But this isnot all. Variations could also be made by changing the senses oftwo or more words at a time, and these variations could be runthrough all the changes and combinations of senses that thesethousand words are capable of. We see, then, that it is no morethan a literal truth, that out of that single instrument, as itnow stands, without altering the location of a single word, mightbe formed, by construction and interpretation, more differentconstitutions than figures can well estimate.

But each written law, in order to be a law, must be taken only insome one definite and distinct sense; and that definite anddistinct sense must be selected from the almost infinite varietyof senses which its words are capable of. How is this selection tobe made? It can be only by the aid of that perception of naturallaw, or natural justice, which men naturally possess.Such, then, is the comparative certainty of the natural and thewritten law. Nearly all the certainty there is in the latter, sofar as it relates to principles, is based upon, and derived from,the still greater certainty of the former. In fact, nearly all theuncertainty of the laws under which we live, which are a mixtureof natural and written laws, arises from the difficulty ofconstruing, or, rather, from the facility of misconstruing, thewritten law; while natural law has nearly or quite the samecertainty as mathematics. On this point, Sir William Jones, one ofthe most learned judges that have ever lived, learned in Asiaticas well as European law, says, and the fact should be keptforever in mind, as one of the most important of all truths: "Itis pleasing to remark, the similarity, or, rather, the identity ofthose conclusions which pure, unbiased reason, in all ages; andnations, seldom fails to draw, in such juridical inquiries as arenot fettered and manacled by positive institutions." [4] In short,the simple fact that the written law must be interpreted by thenatural, is, of itself, a sufficient confession of the superiorcertainty of the latter.

The written law, then, even where it can be construed consistentlywith the natural, introduces labor and obscurity, instead ofshutting them out. And this must always be the case, becausewords do not create ideas, but only recall them; and the same word may recall many different ideas. For this reason, nearly all abstract principles can be seen by the single mind more clearly than they can be expressed by words to another. This is owing to theimperfection of language, and the different senses, meanings, andshades of meaning, which different individuals attach to the samewords, in the same circumstances. [5]

Where the written law cannot be construed consistently with thenatural, there is no reason why it should ever be enacted at all.It may, indeed, be sufficiently plain and certain to be easilyunderstood; but its certainty and plainness are but a poorcompensation for its injustice. Doubtless a law forbidding men todrink water, on pain of death, might be made so intelligible as tocut off all discussion as to its meaning; but would theintelligibleness of such a law be any equivalent for the right todrink water?

The principle is the same in regard to all unjust laws. Fewpersons could reasonably feel compensated for the arbitrarydestruction of their rights, by having the order for theirdestruction made known beforehand, in terms so distinct andunequivocal as to admit of neither mistake nor evasion. Yet thisis all the compensation that such laws offer.

Whether, therefore, written laws correspond with, or differ from,the natural, they are to be condemned. In the first case, they areuseless repetitions, introducing labor and obscurity. In thelatter case, they are positive violations of men's rights.There would be substantially the same reason in enactingmathematics by statute, that there is in enacting natural law.Whenever the natural law is sufficiently certain to all men'sminds to justify its being enacted, it is sufficiently certain toneed no enactment. On the other hand, until it be thus certain,there is danger of doing injustice by enacting it; it should,therefore, be left open to be discussed by anybody who may bedisposed to question it, and to be judged of by the propertribunal, the judiciary. [6]

It is not necessary that legislators should enact natural law inorder that it may be known to the people, because that would bepresuming that the legislators already understand it better thanthe people, a fact of which I am not aware that they have everheretofore given any very satisfactory evidence. The same sourcesof knowledge on the subject are open to the people that are opento the legislators, and the people must be presumed to know it aswell as they.

The objections made to natural law, on the ground of obscurity,are wholly unfounded. It is true, it must be learned, like anyother science; but it is equally true that it is very easilylearned. Although as illimitable in its applications as theinfinite relations of men to each other, it is, nevertheless, madeup of simple elementary principles, of the truth and justice ofwhich every ordinary mind has an almost intuitive perception. Itis the science of justice, and almost all men have the sameperceptions of what constitutes justice, or of what justicerequires, when they understand alike the facts from which theirinferences are to be drawn. Men living in contact with each other,and having intercourse together, cannot avoid learning naturallaw, to a very great extent, even if they would. The dealings ofmen with men, their separate possessions, and their individualwants, are continually forcing upon their minds the questions, Is this act just? or is it unjust? Is this thing mine? or is ithis? And these are questions of natural law; questions, which, inregard to the great mass of cases, are answered alike by the humanmind everywhere.

Children learn many principles of natural law at a very early age.For example: they learn that when one child has picked up anapple or a flower, it is his, and that his associates must not take itfrom him against his will. They also learn that if he voluntarilyexchange his apple or flower with a playmate, for some otherarticle of desire, he has thereby surrendered his right to it, andmust not reclaim it. These are fundamental principles of naturallaw, which govern most of the greatest interests of individualsand society; yet children learn them earlier than they learn thatthree and three are six, or five and five, ten. Talk of enactingnatural law by statute, that it may be known! It would hardly beextravagant to say, that, in nine cases in ten, men learn itbefore they have learned the language by which we describe it.Nevertheless, numerous treatises are written on it, as on othersciences. The decisions of courts, containing their opinions uponthe almost endless variety of cases that have come before them,are reported; and these reports are condensed, codified, anddigested, so as to give, in a small compass, the facts, and theopinions of the courts as to the law resulting from them. Andthese treatises, codes, and digests are open to be read of allmen. And a man has the same excuse for being ignorant ofarithmetic, or any other science, that he has for being ignorantof natural law. He can learn it as well, if he will, without itsbeing enacted, as he could if it were.

If our governments would but themselves adhere to natural law,there would be little occasion to complain of the ignorance of thepeople in regard to it. The popular ignorance of law isattributable mainly to the innovations that have been made uponnatural law by legislation; whereby our system has become anincongruous mixture of natural and statute law, with no uniformprinciple pervading it. To learn such a system, if system it canbe called, and if learned it can be, is a matter of very similardifficulty to what it would be to learn a system of mathematics,which should consist of the mathematics of nature, interspersedwith such other mathematics as might be created by legislation, inviolation of all the natural principles of numbers and quantities.

But whether the difficulties of learning natural law be greater orless than here represented, they exist in the nature of things,and cannot be removed. Legislation, instead of removing, onlyincreases them; This it does by innovating upon natural truths andprinciples, and introducing jargon and contradiction, in the placeof order, analogy, consistency, and uniformity.

Further than this; legislation does not even profess to remove theobscurity of natural law. That is no part of its object. It onlyprofesses to substitute something arbitrary in the place ofnatural law. Legislators generally have the sense to see thatlegislation will not make natural law any clearer than it is.Neither is it the object of legislation to establish the authorityof natural law. Legislators have the sense to see that they canadd nothing to the authority of natural law, and that it willstand on its own authority, unless they overturn it.The whole object of legislation, excepting that legislation whichmerely makes regulations, and provides instrumentalities forcarrying other laws into effect, is to overturn natural law, andsubstitute for it the arbitrary will of power. In other words, thewhole object of it is to destroy men's rights. At least, such isits only effect; and its designs must be inferred from its effect.Taking all the statutes in the country, there probably is not onein a hundred, except the auxiliary ones just mentioned, thatdoes not violate natural law; that does not invade some right orother.

Yet the advocates of arbitrary legislation are continuallypractising the fraud of pretending that unless the legislaturemake the laws, the laws will not be known. The whole object ofthe fraud is to secure to the government the authority of makinglawsthat never ought to be known."

In addition to the authority already cited, of Sir William Jones,as to the certainty of natural law, and the uniformity of men'sopinions in regard to it, I may add the following:

"There is that great simplicity and plainness in the Common Law,that Lord Coke has gone so far as to assert, (and Lord Baconnearly seconds him in observing,) that 'he never knew twoquestions arise merely upon common law; but that they weremostly owing to statutes ill-penned and overladen with provisos.' " 3 Eunomus, 157 8.

If it still be said that juries would disagree, as to what wasnatural justice, and that one jury would decide one way, andanother jury another; the answer is, that such a thing is hardlycredible, as that twelve men, taken at random from the people atlarge, should unanimously decide a question of natural justice oneway, and that twelve other men, selected in the same manner,should unanimously decide the same question the other way,unless they were misled by the justices. If, however, such things should sometimes happen, from any cause whatever, the remedy is by appeal, and new trial.

[1] Judges do not even live up to that part of their own maxim,which requires jurors to try the matter of fact. By dictating tothem the laws of evidence, that is, by dictating what evidencethey may hear, and what they may not hear, and also by dictatingto them rules for weighing such evidence as they permit them tohear, they of necessity dictate the conclusion to which theyshall arrive. And thus the court really tries the question offact, as well as the question of law, in every cause. It isclearly impossible, in the nature of things, for a jury to try, aquestion of fact, without trying every question of law on whichthe fact depends.

[2] Most disagreements of juries are on matters of fact, which areadmitted to be within their province. We have little or noevidence of their disagreements on matters of natural justice. Thedisagreements of courts on matters of law, afford little or noevidence that juries would also disagree on matters of law thatis, of justice, because the disagreements of courts are generallyon matters of legislation, and not on those principles of abstractjustice, by which juries would be governed, and in regard to whichthe minds of men are nearly unanimous.

[3] This is the principle of all voluntary associationswhatsoever. No voluntary association was ever formed, and in thenature of things there never can be one formed, for theaccomplishment of any objects except those in which all theparties to the association are agreed. Government, therefore, mustbe kept within these limits, or it is no longer a voluntaryassociation of all who contribute to its support, but a meretyrant established by a part over the rest.

All, or nearly all, voluntary associations give to a majority, orto some other portion of the members less than the whole, theright to use some limited discretion as to themeans to be used toaccomplish the ends in view; but the end themselves to beaccomplished are always precisely defined, and are such as everymember necessarily agrees to, else he would not voluntarily jointhe association.

Justice is the object of government, and those who support thegovernment, must be agreed as to the justice to be executed by it,or they cannot rightfully unite in maintaining the governmentitself.

[4] Jones on Bailments,

[5] Kent, describing the difficulty of construing the written law,says:

"Such is the imperfection of language, and the want of technicalskill in the makers of the law, that statutes often give occasionto the most perplexing and distressing doubts and discussions,arising from the ambiguity that attends them. It requires greatexperience, as well as the command of a perspicuous diction, toframe a law in such clear and precise terms, as to secure it fromambiguous expressions, and from all doubts and criticisms upon itsmeaning " Kent, 460.

The following extract from a speech of Lord Brougham, in theHouse of Lords, confesses the same difficulty:

There was another subject, well worthy of the consideration ofgovernment during the recess, the expediency, or rather theabsolute necessity, of some arrangement for the preparation ofbills, not merely private, but public bills, in order thatlegislation might be consistent and systematic, and that thecourts might not have so large a portion of their time occupied inendeavoring to construe acts of Parliament, in many casesunconstruable, and in most cases difficult to be construed." LawReporter, 1848, p. 525.

[6] This condemnation of written laws must, of course, beunderstood as applying only to cases where principles and rightsare involved, and not as condemning any governmentalarrangements, or instrumentalities, that are consistent with natural right, and which must be agreed upon for the purpose of carrying natural law into effect. These things may be varied, as expediency may dictate, so only that they be allowed to infringe no principle ofjustice. And they must, of course, be written, because they do notexist as fixed principles, or laws in nature.

CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL

It may probably be safely asserted that there are, at this day,no legal juries, either in England or America. And if there areno legal juries, there is, of course, no legal trial, nor"judgment," by jury.

In saying that there are probably no legal juries, I mean thatthere are probably no juries appointed in conformity with theprinciples of the common law.

The term jury is a technical one, derived from the common law;and when the American constitutions provide for the trial byjury, they provide for the common law trial by jury; and notmerely for any trial by jury that the government itself maychance to invent, and call by that name. It is the thing, and notmerely the name, that is guarantied. Any legislation, therefore,that infringes any essential principle of the common law, in theselection of jurors, is unconstitutional; and the juries selectedin accordance with such legislation are, of course, illegal, andtheir judgments void.

It will also be shown, in a subsequent chapter, [1] that sinceMagna Carta, the legislative power in England (whether king orparliament) has never had any constitutional authority toinfringe, by legislation, any essential principle of the commonlaw in the selection of jurors. All such legislation is as muchunconstitutional and void, as though it abolished the trial byjury altogether. In reality it does abolish it.

What, then, are the essential principles of the common law,controlling the selection of jurors?

They are two.

1. That all the freemen, or adult male members of the state,shall be eligible as jurors. [2]

Any legislation which requires the selection of jurors to be madefrom a less number of freemen than the whole, makes the juryselected an illegal one.

If a part only of the freemen, or members of the state, areeligible as jurors, the jury no longer represent "the country,"but only a part of "the country."

If the selection of jurors can be restricted to any less numberof freemen than the whole, it can be restricted to a very smallproportion of the whole; and thus the government be taken out ofthe hands of " the country," or the whole people, and be throwninto the hands of a few.

That, at common law, the whole body of freemen were eligible asjurors, is sufficiently proved, not only by the reason of thething, but by the following evidence:

1. Everybody must be presumed eligible, until the contrarybe shown. We have no evidence, that I am aware of, of aprior date to Magna Carta, to disprove that all freemen wereeligible as jurors, unless it be the law of Ethelred, whichrequires that they be elderly [3] men. Since no specific ageis given, it is probable, I think, that this statute meantnothing more than that they be more than twenty-one yearsold. If it meant anything more, it was probably contrary tothe common law, and therefore void.

2. Since Magna Carta, we have evidence showing quiteconclusively that all freemen, above the age of twenty-oneyears, were eligible as jurors.

The Mirror of Justices, (written within a century afterMagna Carta,) in the section " Of Judges" that is, jurors says:

"All those who are not forbidden by law may be judges(jurors).

To women it is forbidden by law that they be judges; and thence itis, that feme coverts are exempted to do suit in inferior courts.On the other part, a villein cannot be a judge, by reason of thetwo estates, which are repugnants; persons attainted of falsejudgments cannot be judges, nor infants, nor any under the age oftwenty-one years, nor infected persons, nor idiots, nor madmen,nor deaf, nor dumb, nor parties in the pleas, nor menexcommunicated by the bishop, nor criminal persons. * * Andthose who are not of the Christian faith cannot be judges, nor those who are out of the king's allegiance." Mirror of Justices, 59 60.

In the section " Of Inferior Courts," it is said:

"From the first assemblies came consistories, which we now callcourts, and that in divers places, and in divers manners: whereofthe sheriffs held one monthly, or every five weeks according tothe greatness or largeness of the shires. And these courts arecalled county courts, where the judgment is by the suitors, ifthere be no writ, and is by warrant of jurisdiction ordinary. Theother inferior courts are the courts of every lord of the fee, tothe likeness of the hundred courts. There are other inferiorcourts which the bailiffs hold in every hundred, from three weeksto three weeks, by the suitors of the freeholders of the hundred.All the tenants within the fees are bounden to do their suitthere, and that not for the service of their persons, but for theservice of their fees. But women, infants within the age oftwenty-one years, deaf, dumb, idiots, those who are indicted orappealed of mortal felony, before they be acquitted, diseasedpersons, and excommunicated persons are exempted from doingsuit." Mirror of Justices, 50 51.

In the section "Of the Sheriff's Turns," it is said:

"The sheriff's by ancient ordinances hold several meetings twicein the year in every hundred; where all the freeholders within thehundred are bound to appear for the service of their fees." Mirror of Justices, 50.

The following statute was passed by Edward I., seventy years afterMagna Carta:

"Forasmuch also as sheriffs, hundreders, and bailiffs ofliberties, have used to grieve those which be placed under them,putting in assizes and juries men diseased and decrepit, andhaving continual or sudden disease; and men also that dwelled notin the country at the time of the summons; and summon also anunreasonable number of jurors, for to extort money from some ofthem, for letting them go in peace, and so the assizes and juriespass many times by poor men, and the rich abide at home byreason of their bribes; it is ordained that from henceforth in one assize no more shall be summoned than four and twenty; and old men above three score and ten years, being continually sick, or being diseased at the time of the summons, or not dwelling in that country, shall not be put in juries of petit assizes." St. 13Edward I., ch. 38. (1285.)

Although this command to the sheriff's and other officers, not tosummon, as jurors, those who, from age and disease, werephysically incapable of performing the duties, may not, of itself,afford any absolute or legal implication, by which we candetermine precisely who were, and who were not, eligible as jurorsat common law, yet the exceptions here made nevertheless carry aseeming confession with them that, at common law, all maleadults were eligible as jurors.

But the main principle of the feudal system itself, shows that allthe full and free adult male members of the state that is, allwho were free born, and had not lost their civil rights by crime,or otherwise must, at common law, have been eligible as jurors.What was that principle? It was, that the state rested for supportupon the land, and not upon taxation levied upon the peoplepersonally. The lands of the country were considered the propertyof the state, and were made to support the state in this way: Aportion of them was set apart to the king, the rents of which wentto pay his personal and official expenditures, not including themaintenance of armies, or the administration of justice. War andthe administration of justice were provided for in the followingmanner. The freemen, or the free-born adult male members of thestate who had not forfeited their political rights wereentitled to land of right, (until all the land was taken up,) oncondition of their rendering certain military and civil services,to the state. The military services consisted in servingpersonally as soldiers, or contributing an equivalent in horses,provisions, or other military supplies. The civil servicesconsisted, among other things, in serving as jurors (and, it wouldappear, as witnesses) in the courts of justice. For these servicesthey received no compensation other than the use of their lands.In this way the state was sustained; and the king had no power tolevy additional burdens or taxes upon the people. The personsholding lands on these terms were called freeholders in latertimes freemen meaning free and full members of the state.

Now, as the principle of the system was that the freeholders heldtheir lands of the state, on the condition of rendering thesemilitary and civil services as rents for their lands, theprinciple implies that all the freeholders were liable to theserents, and were therefore eligible as jurors. Indeed, I do notknow that it has ever been doubted that, at common law, all thefreeholders were eligible as jurors. If all had not been eligible,we unquestionably should have had abundant evidence of theexceptions. And if anybody, at this day, allege any exceptions,the burden will be on him to prove them. The presumption clearlyis that all were eligible.

The first invasion which I find made, by the English statutes,upon this common law principle, was made in I285, seventy yearsafter Magna Carta. It was then enacted as follows:

"Nor shall, any be put in assizes or juries, though they ought tobe taken in their own shire, that hold a tenement of less than thevalue of twenty shillings yearly. And if such assizes and juriesbe taken out of the shire, no one shall be placed in them whoholds a tenement of less value than forty shillings yearly at theleast, except such as be witnesses in deeds or other writings,whose presence is necessary, so that they be able to travel." St. 13 .Edward I., ch. 38. (1285.)

The next invasion of the common law, in this particular, was madein 1414, about two hundred years after Magna Carta, when it wasenacted:

"That no person shall be admitted to pass in any inquest upontrial of the death of a man, nor in any inquest betwixt party andparty in plea real, nor in plea personal, whereof the debt or thedamage declared amount to forty marks, if the same person havenot lands or tenements of the yearly value of forty shillings aboveall charges of the same." 2 Henry V., st. 2, ch. 3. (1414.)

Other statutes on this subject of the property qualifications ofjurors, are given in the note. [4]

From these statutes it will be seen that, since 1285, seventyyears after Magna Carta, the common law right of all free Britishsubjects to eligibility as jurors has been abolished, and thequalifications of jurors have been made a subject of arbitrarylegislation. In other words, the government has usurped theauthority of selecting the jurors that were to sit in judgmentupon its own acts. This is destroying the vital principle of thetrial by jury itself, which is that the legislation of the government shall be subjected to the judgment of a tribunal, takenindiscriminately from the whole people, without any choice by thegovernment, and over which the government can exercise nocontrol. If the government can select the jurors, it will, of course,select those whom it supposes will be favorable to its enactments.And an exclusion of any of the freemen from eligibility is aselection of those not excluded.

It will be seen, from the statutes cited, that the most absoluteauthority over the jury box that is, over the right of thepeople to sit in juries has been usurped by the government; thatthe qualifications of jurors have been repeatedly changed, andmade to vary from a freehold of ten shillings yearly, to one of"twenty pounds by the year at least above reprises." They havealso been made different, in the counties of Southampton, Surrey,and Sussex, from what they were in the other counties; differentin Wales from what they were in England; and different in the cityof London, and in the county of Middlesex, from what they were inany other part of the kingdom.

But this is not all. The government has not only assumedarbitrarily to classify the people, on the basis of property, butit has even assumed to give to some of its judges entire andabsolute personal discretion in the selection of the jurors to beimpaneled in criminal cases, as the following statutes show.

"Be it also ordained and enacted by the same authority, that allpanels hereafter to be returned, which be not at the suit of anyparty, that shall be made and put in afore any justice of gaoldelivery or justices of peace in their open sessions to inquirefor the king, shall hereafter be reformed by additions and takingout of names of persons by discretion of the same justices beforewhom such panel shall be returned; and the same justices shallhereafter command the sheriff, or his ministers in his absence, toput other persons in the same panel by their discretions; and thatpanel so hereafter to be made, to be goodand lawful. This act toendure only to the next Parliament " 11 Henry VII., ch. 24, sec.6. (1495.)

This act was continued in force by 1 Henry VIII, ch. 11, (1509,)to the end of the then next Parliament.

It was reenacted, and made perpetual, by 3 Henry VIII., ch. 12.(1511.)

These acts gave unlimited authority to the king's' justices topack juries at their discretion; and abolished the last vestige ofthe common law right of the people to sit as jurors, and judge oftheir own liberties, in the courts to which the acts applied.

Yet, as matters of law, these statutes were no more clearviolations of the common law, the fundamental and paramount"law of the land," than were those statutes which affixed the property qualifications before named; because, if the king, or thegovernment, can select the jurors on the ground of property, itcan select them on any other ground whatever.

Any infringement or restriction of the common law right of thewhole body of the freemen of the kingdom to eligibility as jurors,was legally an abolition of the trial by jury itself. The juriesno longer represented "the country," but only a part of thecountry; that part, too, on whose favor the government chose torely for the maintenance of its power, and which it therefore sawfit to select as being the most reliable instruments for itspurposes of oppression towards the rest. And the selection wasmade on the same principle, on which tyrannical governmentsgenerally select their supporters, viz., that of conciliatingthose who would be most dangerous as enemies, and mostpowerful as friends that is, the wealthy. [6]

These restrictions, or indeed any one of them, of the right ofeligibility as jurors, was, in principle, a complete abolition ofthe English constitution; or, at least, of its most vital andvaluable part. It was, in principle, an assertion of a right, onthe part of the government, to select the individuals who were todetermine the authority of its own laws, and the extent of its ownpowers. It was, therefore, in effect, the assertion of a right, onthe part of the government itself, to determine its own powers,and the authority of its own legislation, over the people; and adenial of all right, on the part of the people, to judge of ordetermine their own liberties against the government. It was,therefore, in reality, a declaration of entire absolutism on thepart of the government. It was an act as purely despotic, inprinciple, as would have been the express abolition of all jurieswhatsoever. By "the law of the land," which the kings were swornto maintain, every free adult male British subject was eligible tothe jury box, with full power to exercise his own judgment as tothe authority and obligation of every statute of the king, whichmight come before him. But the principle of these statutes (fixingthe qualifications of jurors) is, that nobody is to sit injudgment upon the acts or legislation of the king, or thegovernment, except those whom the government itself shall selectfor that purpose. A more complete subversion of the essentialprinciples of the English constitution could not be devised.

The juries of England are illegal for another reason, viz., thatthe statutes cited require the jurors (except in London and a fewother places) to be freeholders. All the other free Britishsubjects are excluded; whereas, at common law, all such subjectsare eligible to sit in juries, whether they be freeholders or not.

It is true, the ancient common law required the jurors to befreeholders; but the term freeholder no longer expresses the sameidea that it did in the ancient common law; because no land is nowholden in England on the same principle, or by the same tenure, asthat on which all the land was held in the early times of thecommon law.

As has heretofore been mentioned, in the early times of thecommon law the land was considered the property of the state; and was all holden by the tenants, so called, (that is, holders,) on the condition of their rendering certain military and civil servicesto the state, (or to the king as the representative of the state,)under the name of rents. Those who held lands on these termswere called free tenants, that is, free holders meaning free persons,or members of the state, holding lands to distinguish them fromvilleins, or serfs, who were not members of the state, but heldtheir lands by a more servile tenure, and also to distinguish themfrom persons of foreign birth, outlaws, and all other persons, whowere not members of the state.

Every freeborn adult male Englishman (who had not lost his civilright" by crime or otherwise) was entitled to land of right; thatis, by virtue of his civil freedom, or membership of the bodypolitic. Every member of the state was therefore a freeholder; andevery freeholder was a member of the state. And the members ofthe state were therefore called freeholders. But what is material tobe observed, is, that a man's right to land was an incident to hiscivil freedom; not his civil freedom an incident to his right toland. He was a freeholder because he was a freeborn member ofthe state; and not a freeborn member of the state because he was afreeholder; for this last would be an absurdity.

As the tenures of lands changed, the term freeholder lost itsoriginal significance, and no longer described a man who held landof the state by virtue of his civil freedom, but only one who heldit in fee-simple that is, free of any liability to military orcivil services. But the government, in fixing the qualificationsof jurors, has adhered to the term freeholder after that term hasceased to express the thing originally designated by it.

The principle, then, of the common law, was, that every freeman,or freeborn male Englishman, of adult age, &c;., was eligible tosit in juries, by virtue of his civil freedom, or his being amember of the state, or body politic. Rut the principle of thepresent English statutes is, that a man shall have a right to sitin juries because he owns lands in fee-simple. At the common lawa man was born to the right to sit in juries. By the presentstatutes he buys that right when he buys his land. And thus this,the greatest of all the political rights of an Englishman, hasbecome a mere article of merchandise; a thing that is bought andsold in the market for what it will bring.

Of course, there can be no legality in such juries as these; butonly in juries to which every free or natural born adult maleEnglishman is eligible.

The second essential principle of the common law, controlling theselection of jurors, is, that when the selection of the actualjurors comes to be made, (from the whole body of male adults,)that selection shall be made in some mode that excludes thepossibility of choice on the part of the government.

Of course, this principle forbids the selection to be made by anyofficer of the government.

There seem to have been at least three modes of selecting thejurors, at the common law. 1. By lot. [7] 2. Two knights, or otherfreeholders, were appointed, (probably by the sheriff,) to selectthe jurors. 3. By the sheriff, bailiff, or other person, who heldthe court, or rather acted as its ministerial officer. Probablythe latter mode may have been the most common, although theremay be some doubt on this point.

At the common law the sheriff's, bailiffs, and other officers werechosen by the people, instead of being appointed by the king. (4Blackstone, 413. Introduction to Gilbert's History of the CommonPleas, p. 2; note, and p. 4.) This has been shown in a formerchapter. [8] At common law, therefore, jurors selected by theseofficers were legally selected, so far as the principle now underdiscussion is concerned; that is, they were not selected by anyofficer who was dependent on the government.

But in the year 1315, one hundred years after Magna Carta, thechoice of sheriff's was taken from the people, and it was enacted:

"That the sheriffs shall henceforth be assigned by the chancellor,treasurer, barons of the exchequer, and by the justices. And inthe absence of the chancellor, by the treasurer, barons andjustices." 9 Edward II., st. 2. (1315.)

These officers, who appointed the sheriffs, were themselvesappointed by the king, and held their offices during his pleasure.Their appointment of sheriffs was, therefore, equivalent to anappointment by the king himself. And the sheriffs, thus appointed,held their offices only during the pleasure of the king, and wereof course mere tools of the king; and their selection of jurorswas really a selection by the king himself. In this manner theking usurped the selection of the jurors who were to sit injudgment upon his own laws.

Here, then, was another usurpation, by which the common law trialby jury was destroyed, so far as related to the county courts, inwhich the sheriff's presided, and which were the most importantcourts of the kingdom. From this cause alone, if there were noother, there has not been a legal jury in a county court inEngland, for more than five hundred years.

In nearly or quite all the States of the United States the juriesare illegal, for one or the other of the same reasons that makethe juries in England illegal.

In order that the juries in the United States may be legal thatis, in accordance with the principles of the common law it isnecessary that every adult male member of the state should havehis name in the jury box, or be eligible as a juror. Yet this isthe case in hardly a single state.

In New Jersey, Maryland, North Carolina, Tennessee, andMississippi, the jurors are required to be freeholders. But thisrequirement is illegal, for the reason that the term freeholder,in this country, has no meaning analogous to the meaning it had inthe ancient common law.

In Arkansas, Missouri, Indiana, and Alabama, jurors are requiredto be "freeholders or householders." Each of these requirements isillegal.

In Florida, they are required to be "householders."

In Connecticut, Maine, Ohio, and Georgia, jurors are required tohave the qualifications of "electors."

In Virginia, they are required to have a property qualification ofone hundred dollars.

In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio,Indiana, Michigan, and Wisconsin, certain civil authorities of thetowns, cities, and counties are authorized to select, once in one,two, or three years, a certain number of the people a smallnumber compared with the whole from whom jurors are to betakenwhen wanted; thus disfranchising all except, the few thusselected.

In Maine and Vermont, the inhabitants, by vote in town meeting,have a veto upon the jurors selected by the authorities of thetown.

In Massachusetts, the inhabitants, by vote in town meeting, canstrike out any names inserted by the authorities, and insertothers; thus making jurors elective by the people, and, of course,representatives only of a majority of the people.

In Illinois, the jurors are selected, for each term of court, bythe county commissioners.

In North Carolina, "the courts of pleas and quarter sessions shallselect the names of such persons only as are freeholders, and asare well qualified to act as jurors, &c;.; thus giving the courtspower to pack the juries." (Revised Statutes, 147.)

In Arkansas, too, "It shall be the duty of the county court ofeach county * to make out and cause to be delivered to the sheriffa list of not less than sixteen, nor more than twenty-threepersons, qualified to serve as grand jurors;" and the sheriff isto summon such persons to serve as grand jurors.

In Tennessee, also, the jurors are to be selected by the countycourts.

In Georgia, the jurors are to be selected by "the justices of theinferior courts of each county, together with the sheriff andclerk, or a majority of them."

In Alabama, "the sheriff; judge of the county court, and clerks ofthe circuit and county courts," or "a majority of" them, selectthe jurors.

In Virginia, the jurors are selected by the sheriffs; but thesheriff's are appointed by the governor of the state, and that isenough to make the juries illegal. Probably the same objectionlies against the legality of the juries in some other states.

How jurors are appointed, and what are their qualifications, inNew Hampshire, Rhode Island, Pennsylvania, Delaware, SouthCarolina, Kentucky, Iowa, Texas, and California, I know not.Thereis little doubt that there is some valid objection to them, of thekinds already suggested, in all these states.

In regard to jurors in the courts of the United States, it isenacted, by act of Congress:

"That jurors to serve in the courts of the United States, in eachstate respectively, shall have the like qualifications and beentitled to the like exemptions, as jurors of the highest court oflaw of such state now have and are entitled to, and shallhereafter, from time to time, have and be entitled to, and shallbe designated by ballot, lot, or otherwise, according to the modeof forming such juries now practised and hereafter to be practisedtherein, in so far as such mode may be practicable by the courtsof the United States, or the officers thereof; and for thispurpose, the said courts shall have power to make all necessaryrules and regulations for conforming the designation andempanelling of jurors, in substance, to the laws and usages now inforce in such state; and, further, shall have power, by role ororder, from time to time, to conform the same to any change inthese respects which may be hereafter adopted by the legislaturesof the respective states for the state courts." St. 1840, ch.47, Statutes at Large, vol. 5, p. 394.

In this corrupt and lawless manner, Congress, instead of takingcare to preserve the trial by jury, so far as they might, byproviding for the appointment of legal juries incomparably themost important of all our judicial tribunals, and the only ones onwhich the least reliance can be placed for the preservation ofliberty have given the selection of them over entirely to thecontrol of an indefinite number of state legislatures, and thusauthorized each state legislature to adapt the juries of theUnited States to the maintenance of any and every system oftyranny that may prevail in such state.

Congress have as much constitutional right to give over all thefunctions of the United States government into the hand of thestate legislatures, to be exercised within each state in suchmanner as the legislature of such state shall please to exercisethem, as they have to thus give up to these legislatures theselection of juries for the courts of the United States.

There has, probably, never been a legal jury, nor a legal trial byjury, in a single court of the United States, since the adoptionof the constitution.

These facts show how much reliance can be placed in writtenconstitutions, to control the action of the government, andpreserve the liberties of the people.

If the real trial by jury had been preserved in the courts of theUnited States that is, if we had had legal juries, and thejurors had known their rights it is hardly probable that onetenth of the past legislation of Congress would ever have beenenacted, or, at least, that, if enacted, it could have beenenforced.

Probably the best mode of appointing jurors would be this: Let thenames of all the adult [male] [9] members of the state, in eachtownship, be kept in a jury box, by the officers of the township;and when a court is to be held for a county or other district, letthe officers of a sufficient number of townships be required(without seeing the names) to draw out a name from their boxesrespectively, to be returned to the court as a juror. This mode ofappointment would guard against collusion and selection; andjuries so appointed would be likely to be a fair epitome of "thecountry."

[1]On the English Constitution.

[2] Although all the freemen are legally eligible as jurors, anyone may nevertheless be challenged and set aside, at the trial,for any special personal disqualification; such as mental orphysical inability to perform the duties; having been convicted,or being under charge, of crime; interest, bias, &c;. But it isclear that the common law allows none of these points to bedetermined by the court, but only by "triers."

[3] What was the precise meaning of the Saxon word, which I havehere called elderly, I do not know. In the Latin translations itis rendered by seniores, which may perhaps mean simply thosewho have attained their majority.

[4] In 1485 it was enacted, by a statute entitled " Of what creditand estate those jurors must be which shall be impaneled in theSheriff's Turn."

"That no bailiff nor other officer from henceforth return orimpanel any such person in any shire of England, to be taken orput in or upon any inquiry in any of the said Turns, but such asbe of good name and fame, and having lands and tenements offreehold within the same shires, to the yearly value of twentyshillings at the least, or else lands and tenements holden bycustom of manor, commonly called copy-hold, within the saidshires, to the yearly value of twenty-six shillings eight penceover all charges at the least." 1 Richard III., ch. 4. (1483 )

In 1486 it was enacted, " That the justices of the peace of everyshire of this realm for the time being may take, by theirdiscretion, an inquest, whereof every man shall have lands andtenements to the yearly value of forty shillings at the least, toinquire of the concealments of others," &c;., &c;. 3 Henry VII,ch. 1. (1486.)

A statute passed in 1494, in regard to jurors in the city ofLondon, enacts:

"That no person nor persons hereafter be impaneled, summoned,or sworn in any jury or inquest in courts within the same city, (ofLondon,) except he be of lands, tenements, or goods and chattels,to the value of forty marks; [5] and that no person or personshereafter be impaneled, summoned, nor sworn in any jury orinquest in any court within the said city, for lands or tenements, oraction personal, wherein the debt or damage amounteth to the sumof forty marks, or above, except he be in lands tenements, goods,or chattels, to the value of one hundred marks." 11 Henry VII.ch. 21. (1494.)

The statute 4 Henry VIII, ch. 3, sec. 4, (1512) requires jurors inLondon to have "goods to the value of one hundred marks."

In 1494 it was enacted that "It shall be lawful to every sheriffof the counties of Southampton, Surrey., and Sussex, to impaneland summons twenty-four lawful men of such, inhabiting withinthe precinct of his or their turns, as owe suit, to the same turn,whereof every one hath lands or freehold to the yearly value often shillings, or copyhold lands to the yearly value of thirteenshillings four pence, above all charges within any of the saidcounties, or men of less livelihood, if there be not so manythere, not withstanding the statute of 1 Richard III., ch. 4. Toendure to the next parliament." 11 Henry VII., ch. 24. (1494.)This statute was continued in force by 19 Henry VII., ch. 16(1503.)

In 1531 it was enacted, "That every person or person being theking's natural subject born, which either by the name of citizen,or of a freeman, or any other name, doth enjoy and use theliberties and privileges of any city, borough, or town corporate,where he dwelleth and maketh his abode, being worth in moveablegoods and substance to the clear value of forty pounds, behenceforth admitted in trials of murders and felonies in everysessions and gaol delivery, to be kept and holden in and for theliberty of such cities, boroughs, and towns corporate, albeit theyhave no freehold; any act, statute, use, custom, or ordinance tothe contrary hereof notwithstanding." 23 Henry VIII., ch. 13.(1531.)

In 1585 it was enacted, "That in all cases where any jurors to bereturned for trial of any issue or issues joined in any of theQueen's majesty's courts of King's Bench, Common Pleas, and theExchequer, or before judices of assize, by the laws of this realmnow in force, ought to have estate of freehold in lands,tenements, or hereditaments, of the clear yearly value of fortyshillings, that in every such case the jurors that shall bereturned from and after the end of this present session ofparliament, shall every of them have estate of freehold in lands,tenements, or hereditaments, to the clear yearly value of fourpounds at the least." 27 Elizabeth, ch. 6. (1585.)

In 1664-5 it was enacted "That all jurors (other than strangersupon trials per medietatem linquae) who are to be returned for thetrials of issues joined in any of (his) majesty's courts of king'sbench, common pleas, or the exchequer, or before justices ofassize, nisi prius, oyer and terminer, gaol delivery, or generalor quarter sessions of the peace from and after the twentieth dayof April, which shall be in the year of our Lord one thousand sixhundred and sixty-five, in any county of this realm of England,shall every of them then have, in their own name, or in trust forthem, within the same county, twenty pounds, by the year, atleast, above reprises, in their own or their wives right, offreehold lands, or of ancient demesne, or of rents in fee,fee-tail, or for life. And that in every county within thedominion of Wales every such juror shall then have, within thesome, eight pounds by the year, at the least, above reprises, inmanner aforesaid. All which persons having such estate asaforesaid are hereby enabled and made liable to be returned andserve as jurors for the trial of issues before the justicesaforesaid, any law or statute to the contrary in any wisenotwithstanding," 16 and 17 Charles II., ch. 5. (1664-5,)

By a statute passed in 1692, jurors in England are to have landedestates of the value of ten pounds a year, and jurors in Wales tohave similar estates of the realm of six pounds a year. 4 and 5William and Mary, ch. 24, sec. 14, (1692,)

By the same statute, (sec. 18,) persons may be returned to serveupon the tales in any county of England, who shall have within thesame county, five pounds by the year, above reprises, in themanner aforesaid.

By St. 3 George II., ch. 25, sec. 10, 20, no one is to be a jurorin London, who shall not be "an householder within the said city,and have lands, tenements, or personal estate, to the value of onehundred pounds."

By another statute, applicable only to the county of Middlesex, itis enacted, "That all leaseholders, upon leases where the improvedrents or value shall amount to fifty pounds or upwards per annum,over and above all ground rents or other reservations payable byvirtue of the said leases, shall be liable and obliged to serveupon juries when they shall be legally summoned for thatpurpose.," 4 George II., ch. 7, sec, 3. (1731.)

[5] A mark was thirteen shillings and four pence.

[6] Suppose these statutes, instead of disfranchising all whosefreeholds were of less than the standard value fixed by thestatutes, had disfranchised all whose freeholds were of greatervalue than the same standard would anybody ever have doubtedthat such legislation was inconsistent with the Englishconstitution; or that it amounted to an entire abolition of thetrial by jury? Certainly not. Yet it was as clearly inconsistentwith the common law, or the English constitution, to disfranchisethose whose freeholds fell below any arbitrary standard fixed bythe government, as it would have been to disfranchise all whosefreeholds rose above that standard.

[9] Editor's Note: (The following was not in Spooner's addition)With the ratification of Article XIX of amendment to the Constitution for the United States, August 20, 1920, women werefully enfranchised with all rights of voting and jury service in all states of the Union.

CHAPTER VII. ILLEGAL JUDGES

IT is a principle of Magna Carta, and therefore of the trial byjury, (for all parts of Magna Carta must be construed together,)that no judge or other officer appointed by the king, shallpreside in jury trials, in criminal cases, or "pleas of thecrown."

This provision is contained in the great charters of both Johnand Henry, and is second in importance only to the provisionguaranteeing the trial by jury, of which it is really a part.Consequently, without the observance of this prohibition, therecan be no genuine or legal that is, common law trial by jury.At the common law, all officers who held jury trials, whether incivil or criminal cases, were chosen by the people. [1]

But previous to Magna Carta, the kings had adapted the practiceof sending officers of their own appointment, called justices,into the counties, to hold jury trials in some cases; and MagnaCarta authorizes this practice to be continued so far as itrelates to three kinds of civil actions, to wit: "noveldisseisin, mort de ancestor, and darrein presentment;" [2] butspecially forbids its being extended to criminal cases, or pleasof the crown.

Some persons seem to have supposed that this was a prohibitionmerely upon officers bearing the specific names of "sheriffs,constables, coroners and bailiffs," to hold criminal trials. Butsuch is not the meaning. If it were, the name could be changed,and the thing retained; and thus the prohibition be evaded. Theprohibition applies (as will presently be seen) to all officersof the king whatsoever; and it sets up a distinction betweenofficers of the king, ("our bailiffs,") and officers chosen bythe people.

The prohibition upon the king's justices sitting in criminaltrials, is included in the words "vel alii balivi nostri," (orother our bailiffs.) The word bailif was anciently a sort ofgeneral name for judicial officers and persons employed in andabout the administration of justice. In modern times its use, asapplied to the higher grades of judicial officers, has beensuperseded by other words; and it therefore now, more generally,if not universally, signifies an executive or police officer, aservant of courts, rather than one whose functions are purelyjudicial.

The word is a French word, brought into England by the Normans.

Coke says, "Baylife is a French word, and signifies an officerconcerned in the administration of justice of a certain province;and because a sheriff hath an office concerning theadministration of justice within his county, or bailiwick,therefore be called his county baliva sua, (his bailiwick.)

"I have heard great question made what the true exposition ofthis word balivus is. In the statute of Magna Carta, cap. 28, theletter of that statute is, nullus balivus de eaetero ponataliqnem ad legem manifestam nec ad juramentum simplici loquelasua sine testibus fidelibus ad hoc inductis." (No bailiff fromhenceforth shall put any one to his open law, nor to an oath {ofself-exculpation) upon his own simple accusation, or complaint,without faithful witnesses brought in for the same.) "And somehave said that balivus in this statute signifieth any judge; forthe law must be waged and made before the judge. And this statute(say they) extends to the courts of common pleas, king's bench,&c;., for they must bring with them fideles testes, (faithfulwitnesses,) &c;., and so hath been the usage to this day." 1Coke's Inst., 168 b.

Coke makes various references, in his margin to Bracton, Fleta,and other authorities, which I have not examined, but which, Ipresume, support the opinion expressed in this quotation.

Coke also, in another place, under the head of the chapter justcited from Magna Carta, that "no bailiff shall put any man to hisopen law," &c;., gives the following commentary upon it, from theMirror of Justices, from which it appears that in the time ofEdward I., (1272 to 1307,) this word balivus was understood toinclude all judicial, as well as all other, officers of the king.

The Mirror says: "The point which forbiddeth that no bailiff puta freeman to his oath without suit, is to be understood in thismanner, that no justice, no minister of the king, nor othersteward, nor bailiff, have power to make a freeman make oath, (ofself-exculpation,) without the king's command, [3] nor receiveany plaint, without witnesses present who testify the plaint tobe true." Mirror of Justices, ch. 5, sec. 2, p. 257.

Coke quotes this commentary, (in the original French,) and thenendorses it in these words:

"By this it appeareth, that under this word balivus, in this act,is comprehended every justice, minister of the king, steward, andbailiff." 2 Inst., 44.

Coke also, in his commentary upon this very chapter of MagnaCarta, that provides that "no sheriff; constable; coroner, orother our bailiffs, shall hold pleas of our crown," expresses theopinion that it "is a general law," (that is, applicable to allofficers of the king,) " by reason of the words vel alii balivinostri, (or other our bailiffs,) under which words arecomprehended all judges or justices of any courts of justice."And he cites a decision in the king's bench, in the 17th year ofEdward I., (1289,) as authority; which decision he calls "anotable and leading judgment." 2 Inst., 30 1.

And yet Coke, in flat contradiction of this decision, which hequotes with such emphasis and approbation, and in flatcontradiction also of the definition he repeatedly gives of theword balivus showing that it embraced all ministers of the kingwhatsoever, whether high or low, judicial or executive,fabricates an entirely gratuitous interpretation of this chapterof Magna Carta, and pretends that after all it only required thatfelonies should he tried before the king's justices, on accountof their superior Iearning; and that it permitted all lesseroffenses to be tried before inferior officers, (meaning of coursethe king's inferior officers.) 2 Inst., 30.

And thus this chapter of Magna Carta, which, according to his owndefinition of the word balivus, applies to all officers of theking; and which, according to the common and true definition ofthe term "pleas of the crown," applies to all criminal caseswithout distinction, and which, therefore, forbids any officer orminister of the king to preside in a jury trial in any criminalcase whatsoever, he coolly and gratuitously interprets into amere senseless provision for simply restricting the discretion ofthe king in giving names to his own officers who should presideat the trials of particular offences; as if the king, who madeand unmade all his officers by a word, could not defeat the wholeobject of the prohibition, by appointing such individuals as hepleased, to try such causes as he pleased, and calling them bysuch names as he pleased, if he were but permitted to appoint andname such officers at all; and as if it were of the leastimportance what name an officer bore, whom the king mightappoint to a particular duty. [4]

Coke evidently gives this interpretation solely because, as hewas giving a general commentary on Magna Carta, he was boundtogive some interpretation or other to every chapter of it; and forthis chapter he could invent, or fabricate, (for it is a sheerfabrication,) no interpretation better suited to his purpose thanthis. It seems never to have entered his mind, (or if it did, heintended that it should never enter the mind of anybody else,)that the object of the chapter could be to deprive the king ofthe power of putting his creatures into criminal courts, to pack,cheat, and browbeat juries, and thus maintain his authority byprocuring the conviction of those who should transgress his laws,or incur his displeasure.

This example of Coke tends to show how utterly blind, or howutterly corrupt, English judges, (dependent upon the crown andthe legislature), have been in regard to everything in MagnaCarta, that went to secure the liberties of the people, or limitthe power of the government.

Coke's interpretation of this chapter of Magna Carta is of apiece with his absurd and gratuitous interpretation of the words"nec super eum ibimus, nec super eum mittemus," which waspointedout in a former article, and by which he attempted to give ajudicial power to the king and his judges, where Magna Carta hadgiven it only to a jury. It is also of a piece with his pretencethat there was a difference between fine and amercement, and thatfines might be imposed by the king, and that juries were requiredonly for fixing amercements.

These are some of the innumerable frauds by which the Englishpeople have been cheated out of the trial by jury.

Ex uno disce omnes. From one judge learn the characters of all.[6]

I give in the note additional and abundant authorities for themeaning ascribed to the word bailiff. The importance of theprinciple involved will be a sufficient excuse for such anaccumulation of authorities as would otherwise be tedious andperhaps unnecessary. [7]

The foregoing interpretation of the chapter of Magna Carta nowunder discussion, is corroborated by another chapter of MagnaCarta, which specially provides that the king's justices shall"go through every county" to "take the assizes" (hold jurytrials) in three kinds of civil actions, to wit, "noveldisseisin, mort de ancestor, and darrein presentment;" but makesno mention whatever of their holding jury trials in criminal cases, an omission wholly unlikely to be made, if it were designed they should attend the trial of such causes. Besides, the here spoken of (in John's charter) does not allow these justices to sit alone in jury trials, even in civilactions; but provides that four knights, chosen by the county, shall sit with them to keep them honest. When the king's justices were known to be so corrupt and servile that the people would not even trust them to sit alone, in jury trials, in civil actions, how preposterous is it to suppose that they would not only suffer them to sit, but to sit alone, in criminal ones.

It is entirely incredible that Magna Carta, which makes suchcareful provision in regard to the king's justices sitting incivil actions, should make no provision whatever as to theirsitting in criminal trials, if they were to be allowed to sit inthem at all. Yet Magna Carta has no provision whatever on thesubject. [10]

But what would appear to make this matter ahsolute1y certain is,that unless the prohibition that "no bailiff, &c;., of ours shallhold pleas of our crown," apply to all officers of the king,justices as well as others, it would be wholly nugatory for anypractical or useful purpose, because the prohibition could beevaded by the king, at any time, by simply changing the titles ofhis officers. Instead of calling them "sheriffs, coroners,constables and bailiffs," he could call them "justices," oranything else he pleased; and this prohibition, so important tothe liberty of the people, would then be entirely defeated. Theking also could make and unmake "justices" at his pleasure; andif he could appoint any officers whatever to preside over juriesin criminal trials, he could appoint any tool that he might atany time find adapted to his purpose. It was as easy to makejustices of Jeffreys and Scroggs, as of any other material; andto have prohibited all the king's officers, except his justices,from presiding in criminal trials, would therefore have been merefool's play.

We can all perhaps form some idea, though few of us will belikely to form any adequate idea, of what a different thing thetrial by jury would have been in practice, and of what would havebeen the difference to the liberties of England, for five hundredyears last past, had this prohibition of Magna Carta, upon theking's officers sitting in the trial of criminal cases, beenobserved.

The principle of this chapter of Magna Carta, as applicable tothe governments of the United States of America, forbids that anyofficer appointed either by the executive or legislative power,or dependent upon them for their salaries, or responsible to themby impeachment, should preside over a jury in criminal trials. Tohave the trial a legal (that is, a common law) and true trial byjury, the presiding officers must be chosen by the people, and beentirely free from all dependence upon, and all accountabilityto, the executive and legislative branches of the government.[12]

[1] The proofs of this principle of the common law have alreadybeen given on page 120, note.

There is much confusion and contradiction among authors as tothe manner in which sheriffs and other officers were appointed; somemaintaining that they were appointed by the king, others thatthey were elected by the people. I imagine that both theseopinions are correct, and that several of the king's officersbore the same official names as those chosen by the people; andthat this is the cause of the confusion that has arisen on thesubject.

It seems to be a perfectly well established fact that, at commonlaw, several magistrates, bearing the names of aldermen, sheriff,stewards, coroners and bailiffs, were chosen by the people; andyet it appears, from Magna Carta itself, that some of the king's officers (of whom he must have had many) were also called"sheriffs, constables, coroners, and bailiffs."

But Magna Carta, in various instances, speaks of sheriffs andbailiffs as "our sheriff's and bailiffs;" thus apparentlyintending to recognize the distinction between officers of theking, bearing those names, and other officers, bearing the sameofficial names, but chosen by the people. Thus it says that "nosheriff or bailiff of ours, or any other (officer), shall takehorses or carts of any freeman for carriage, unless with theconsent of the freeman himself." John's Charter, ch. 36.

In a kingdom subdivided into so many counties, hundreds,tithings, manors, cities and boroughs, each having a judicial orpolice organization of its own, it is evident that many of theofficers must have been chosen by the people, else the governmentcould not have mainlined its popular character. On the otherhand, it is evident that the king, the executive power of thenation, must have had large numbers of officers of his own inevery part of the kingdom. And it is perfectly natural that thesedifferent sets of officers should, in many instances, bear thesame official names; and, consequently that the king, whenspeaking of his own officers, as distinguished, from those chosenby the people, should call them "our sheriffs, bailiffs," &c;, ashe does in Magna Carta.

I apprehend that inattention to these considerations has been thecause of all the confusion of ideas that has arisen on thissubject, a confusion very evident in the following paragraphfrom Dunham, which may be given as an illustration of that whichis exhibited by others on the same points.

"Subordinate to the ealdormen were the gerefas, the sheriffs, orreeves, of whom there were several in every shire, or county.There was one in every borough, as a judge. There was one atevery gate, who witnessed purchases outside the walls; and therewas one, higher than either, the high sheriff, who was probablythe reeve of the shire. This last appears to have been appointedby the king. Their functions were to execute the decrees of theking, or ealdormen, to arrest prisoners, to require bail fortheir appearance at the sessions, to collect fines or penaltieslevied by the court of the shire, to preserve the public peace,and to preside in a subordinate tribunal of their own." Durham's Middle Ages, sec. 2, B. 2, ch. 1. - 57 Lardner's Cab.Cyc., p 41.

The confusion of duties attributed to these officers indicatesclearly enough that different officers, bearing the same officialnames, must have had different duties, and have derived theirauthority from different sources, to wit, the king, and thepeople.

[2] Darrein presentement was an inquest to discover whopresented the last person to a church; mort de ancestor, whetherthe last possessor was seized of land in demesne of his own fee;and novel disseisin, whether the claimant had been unjustlydisseized of his freehold.

[3] He has no power to do it, either with, or without, the king'scommand. The prohibition is absolute, containing no suchqualification as is here interpolated, viz., "without the king'scommand." If it could be done with the king's command, the kingwould be invested with arbitrary power in the matter.

[4] The absurdity of this doctrine of Coke is made more apparentby the fact that, at that time, the "justices" and other personsappointed by the king to hold courts were not only dependent uponthe king for their offices, and removable at his pleasure, butthat the usual custom was, not to appoint them with any view topermanency, but only to give them special commissions for tryinga single cause, or for holding a single term of a court, or formaking a single circuit; which, being done, their commissionsexpired. The king, therefore, could, and undoubtedly did, appointany individual he pleased, to try any cause he pleased, with aspecial view to the verdicts he desired to obtain in theparticular cases.

This custom of commissioning particular persons to hold jurytrials, in criminal cases, (and probably also in civil ones,) wasof course a usurpation upon the common law, but had beenpractised more or less from the time of William the Conqueror.Palgrave says:

"The frequent absence of William from his insular dominionsoccasioned another mode of administration, which ultimatelyproduced still greater changes in the law. It was the practice ofappointing justiciars to represent the king's person, to hold hiscourt, to decide his pleas, to dispense justice on his behalf, tocommand the military levies, and to act as conservators of thepeace in the king's name. [5] .. The justices who were assignedin the name of the sovereign, and whose powers were revocable athis pleasure, derived their authority merely from their grant...Some of those judges were usually deputed for the purpose ofrelieving the king from the burden of his judicial functions...The number as well as the variety of names of the justicesappearing in the early chirographs of 'Concords,' leave reasonfor doubting whether, anterior to the reign of Henry III., (1216to 1272,) a court, whose members were changing at almost everysession, can be said to have been permanently constituted. Itseems more probable that the individuals who composed thetribunal were selected as suited the pleasure of the sovereign,and the convenience of the clerks and barons; and the history ofour legal administration will be much simplified, if we considerall those courts which were afterwards denominated theExchequer, the King's Bench, the Common Pleas, and the Chancery, as being originally committees, selected by the king when occasionrequired, out of a large body, for the despatch of peculiarbranches of business, and which committees, by degrees, assumedan independent and permanent existence... Justices itinerant,who, despatched throughout the land, decided the ' Pleas of theCrown,' may be obscurely traced in the reign of the Conqueror;not, perhaps, appointed with much regularity, but despatched uponpeculiar occasions and emergencies." 1 Palgrave's Rise andProgress, &c;., p. 289 to 293.

The following statute, passed in 1354, (139 years after MagnaCarta,) shows that even after this usurpation of appointing"justices " of his own, to try criminal cases, had probablybecome somewhat established in practice, in defiance of MagnaCarta, the king was in the habit of granting special commissionsto still other persons, (especially to sheriffs, his sheriffs,no doubt,) to try particular cases:

"Because that the people of the realm have suffered many evilsand mischiefs, for that sheriffs of divers counties, by virtue ofcommissions and general writs granted to them at their own suit,for their singular profit to gain of the people, have made andtaken divers inquests to cause to indict the people at theirwill, and have taken fine and ransom of them to their own use,and have delivered them; whereas such persons indicted were notbrought before the king's justices to have their deliverance, itis accorded and established, for to eschew all such evils andmischiefs, that such commissions and writs before this time madeshall be utterly repealed, and that from henceforth no suchcommissions shall be granted." St. 28 Edward III., ch. 9,(1354.)

How silly to suppose that the illegality of these commissions totry criminal eases, could have been avoided by simply grantingthem to persons under the title of "justices," instead ofgranting them to "sheriffs." The statute was evidently a cheat,or at least designed as such, inasmuch as it virtually assertsthe right of the king to appoint his tools, under the name of"justices," to try criminal cases, while it disavows his right toappoint them under the name of "sheriffs."

Millar says: "When the king's bench came to have its usualresidence at Westminster, the sovereign was induced to grantspecial commissions, for trying particular crimes, in such partsof the country as were found most convenient; and this practicewas gradually modeled into a regular appointment of certaincommissioners, empowered, at stated seasons, to perform circuitsover the kingdom, and to hold courts in particular towns, for thetrial of all sorts of crimes. These judges of the circuit,however, never obtained an ordinary jurisdiction, but continued,on every occasion, to derive their authority from two specialcommissions: that of oyer and terminer, by which they wereappointed to hear and determine all treasons, felonies andmisdemeanors, within certain districts; and that of gaoldelivery, by which they were directed to try every prisonerconfined in the gaols of the several towns falling under theirinspection." Millar's Hist. View of Eng. Gov., vol. 2, ch. 7,p. 282.

The following extract from Gilbert shows to what lengths ofusurpation the kings would sometimes go, in their attempts to getthe judicial power out of the hands of the people, and entrust itto instruments of their own choosing:

"From the time of the Saxons," (that is, from the commencementof the reign of William the Conqueror,) "till the reign of Edwardthe first, (1272 to 1307,) the several county courts and sheriffscourts did decline in their interest and authority. The methodsby which they were broken were two-fold. First, by grantingcommissions to the sheriffs by writ of JUSTICIES, whereby thesheriff had a particular jurisdiction granted him to be judge ofa particular cause, independent of the suitors of the countycourt," (that is, without a jury;) "and these commissions wereafter the Norman form, by which (according to which) all power ofjudicature was immediately derived from the king." Gilbert onthe Court of Chancery, p. l.

The several authorities now given show that it was the custom ofthe Norman kings, not only to appoint persons to sit as judges injury trials, in criminal cases, but that they also commissionedindividuals to sit in singular and particular eases, as occasionrequired; and that they therefore readily could, and naturallywould, and therefore undoubtedly did, commission individualswith a special view to their adaptation or capacity to procure suchjudgments as the kings desired.

The extract from Gilbert suggests also the usurpation of theNorman kings, in their assumption that they, (and not the people,as by the common law,) were the fountains of justice. It was onlyby virtue of this illegal assumption that they could claim toappoint their tools to hold courts.

All these things show how perfectly lawless and arbitrary thekings were, both before and after Magna Carta, and how necessaryto liberty was the principle of Magna Carta and the common law,that no person appointed by the king should hold jury trials incriminal cases.

[5] In this extract, Palgrave seems to assume that the kinghimself had a right to sit as judge, in jury trials, in thecounty courts, in both civil and criminal cases. I apprehend hehad no such power at the common law, but only to sit in the trialof appeals, and in the trial of peers, and of civil suits inwhich peers were parties, and possibly in the courts of ancientdemesne.

[6] The opinions and decisions of judges and courts areundeserving of the least reliance, (beyond the intrinsic merit ofthe arguments offered to sustain them,) and are unworthy even tobe quoted as evidence of the law, when those opinions ordecisions are favorable to the power of the government, orunfavorable to the liberties of the people. The only reasons thattheir opinions, when in favor of liberty, are entitled to anyconfidence, are, first, that all presumptions of law are in favorof liberty; and, second, that the admissions of all men, theinnocent and the criminal alike, when made against their owninterests, are entitled to be received as true, because it iscontrary to human nature for a man to confess anything but truthagainst himself.

More solemn farces, or more gross impostures, were neverpractised upon mankind, than are all, or very nearly all, thoseoracular responses by which courts assume to determine thatcertain statutes, in restraint of individual liberty, are withinthe constitutional power of the government, and are thereforevalid and binding upon the people.

The reason why these courts are so intensely servile and corrupt,is, that they are not only parts of, but the veriest creaturesof, the very governments whose oppressions they are thus seekingto uphold. They receive their offices and salaries from, and areimpeachable and removable by, the very governments upon whoseacts they affect to sit in judgment. Of course, no one with hiseyes open ever places himself in a position so incompatible withthe liberty of declaring his honest opinion, unless he do it withthe intention of becoming a mere instrument in the hands of thegovernment for the execution of all its oppressions.

As proof of this, look at the judicial history of England for thelast five hundred years, and of America from its settlement. Inall that time (so far as I know, or presume) no bench of judges,(probably not even any single judge,) dependent upon thelegislature that passed the statute, has ever declared a singlepenal statute invalid, on account of its being in conflict eitherwith the common law, which the judges in England have beensworn to preserve, or with the written constitutions, (recognizingmen's natural rights,) which the American judges were under oathto maintain. Every oppression, every atrocity even, that has everbeen enacted in either country, by the legislative power, in theshape of a criminal law, (or, indeed, in almost any other shape,)has been as sure of a sanction from the judiciary that wasdependent upon, and impeachable by, the legislature that enactedthe law, as if there were a physical necessity that thelegislative enactment and the judicial sanction should gotogether. Practically speaking, the sum of their decisions, alland singular, has been, that there are no limits to the power ofthe government, and that the people have no rights except whatthe government pleases to allow to them.

It is extreme folly for a people to allow such dependent,servile, and perjured creatures to sit either in civil orcriminal trials; but to allow them to sit in criminal trials, andjudge of the people's liberties, is not merely fatuity, it issuicide.

[7] Coke, speaking of the word bailiffs, as used in the statuteof 1 Westminster, ch. 35, (1275,) says:

"Here bailiffs are taken for the judges of the court, asmanifestly appeareth hereby." 2 Inst., 229.

Coke also says, ' It is a maxim in law, aliguis non debet essejudex in propria causa, (no one ought to be judge in his owncause;) and therefore a fine levied before the baylifes of Salopwasreversed, because one of the baylifes was party to the fine,quia non potest esse judex et pars," (because one cannot be judgeand party.) 1 Inst., 141 a.

In the statute of Gloucester, ch. 11 and 12, (1278,) "the mayorand bailiffs of London (undoubtedly chosen by the people, or atany rate not appointed by the king) are manifestly spoken of asjudges, or magistrates, holding jury trials, as follows:

Ch. II. "It is provided, also, that if any man lease his tenementin the city of London, for a term of years, and he to whom thefreehold belongeth causeth himself to be impleaded by collusion,and maketh default after default, or cometh into court and givethit up, for to make the termor (lessee) lose his term, (lease,)and the demandant hath his suit, so that the termor may recoverby writ of covenant; the mayor and bailiffs may inquire by a goodinquest, (jury,) in the presence of the termor and the demandant,whether the demandant moved his plea upon good right that hehad,or by collusion, or fraud, to make the termor lose his term; andif it be found by the inquest (jury) that the demandant moved hisplea upon good right that he had, the judgment shall be givenforthwith; and if it be found by the inquest (jury) that heimpleaded him (self ) by fraud, to put the termor from his term,then shall the termor enjoy his term, and the execution ofjudgment for the demandant shall be suspended until the term beexpired." 4 Edward I., ch. 11, (1278.)

Coke, in his commentary on this chapter, calls this court of "themayor and bailiffs" of London, " the court of the hustings, thegreatest and highest court in London;" and adds, "other citieshave the like court, and so called, as York, Lincoln, Winchester,&e;. Here the city of London is named; but it appeareth by thatwhich hath been said out of Fleta, that this act extends to suchcities and boroughs privileged, that is, such as have suchprivilege to hold plea as London hath." 2 Inst., 322.

The 12th chapter of the same statute is in the following words,which plainly recognize the fact that " the mayor and bailiffs ofLondon" are judicial officers holding courts in London.

"It is provided, also, that if a man, impleaded for a tenement inthe same city, (London,) doth vouch a foreigner to warranty, thathe shall come into the chancery, and have a writ to summon hiswarrantor at a certain day before the justices of the beach, andanother writ to the mayor and bailiff of London, that they shallsurcease (suspend proceedings) in the matter that is before themby writ, until the plea of the warrantee be determined before thejustices of the bench; and when the plea at the bench shall bedetermined, then shall he that is vouched be commanded to go intothe city," (that is, before "the mayor and bailiffs " court,) "toanswer unto the chief plea; and a writ shall be awarded at thesuit of the demandant by the justices unto the mayor andbailiffs, that they shall proceed in the plea," &c;. 6 EdwardI., ch. 12, (1278.)

Coke, in his commentary on this chapter, also speaks repeatedlyof "the mayor and bailiffs" as judges holding courts, and alsospeaks of this chapter as applicable not only to "the citie ofLondon, specially named for the cause aforesaid, but extended byequity to all other privileged places," (that is, privileged tohave a court of "mayor and bailiffs,") "where foreign voucher ismade, as to Chester, Durham, Salop," &e;. 2 Inst., 325 7.

BAILIE. In Scotch law, a municipal magistrate, correspondingwith the English alderman.[8] Burrill's Law Dictionary.

BAILLIFFE Baillif. Fr. A bailiff: a ministerial officer withduties similar to those of a sheriff. * * The judge of a court. Amunicipal magistrate, &c;. Burrill's Law Dict.

BAILIFF - The word bailiff is of Norman origin, and was appliedin England, at an early period, (after the example, it is said,of the French,) to the chief magistrates of counties, or shires,such as the alderman, the reeve, or sheriff, and also of inferiorjurisdictions, such as hundreds and wapentakes. Spelman, voc.Balivus; 1 Bl. Com.,344. See Bailli, Ballivus. The Latin ballivusoccurs, indeed, in the laws of Edward the Confessor, but Spelmanthinks it was introduced by a later hand. Balliva (bailiwick) wasthe word formed from ballivus, to denote the extent of territorycomprised within a bailiff's jurisdiction; and bailiwick is stillretained in writs and other proceedings, as the name of asheriff's county. 1 Bl. Com., 344. See Balliva. The office ofbailiff was at first strictly, though not exclusively, a judicialone. In France, the word had the sense of what Spelman callsjustitia tutelaris. Ballivus occurs frequently in the RegiamMajestatem, in the sense of a judge. Spelman. In its sense of adeputy, it was formerly applied, in England, to those officerswho, by virtue of a deputation, either from the sheriff or thelords of private jurisdictions, exercised within the hundred, orwhatever might be the limits of their bailiwick, certain judicialand ministerial functions. With the disuse of private and localjurisdictions, the meaning of the term became commonly restrictedto such persons as were deputed by the sheriff to assist him inthe merely ministerial portion of his duty; such as the summoningof juries, and the execution of writs. Brande.. The wordbailiff is also applied in England to the chief magistrates ofcertain towns and jurisdictions, to the keepers of castles,forests and other places, and to the stewards or agents of lordsof manors. Burrill's Law Dict.

"BAILIFF, (from the Lat. ballivus; Fr. baillif, i. e., Praefectusprovinciae,) signifies an officer appointed for theadministration of justice within a certain district. The office,as well as the name, appears to have been derived from theFrench," &c;. Brewster's Encyclopedia.

Millar says, "The French monarchs, about this period, were notcontent with the power of receiving appeals from the severalcourts of their barons. An expedient was devised of sending royalbailiffs into different parts of the kingdom, with a commissionto take cognizance of all those causes in which the sovereign wasinterested, and in reality for the purpose of abridging andlimiting the subordinate jurisdiction of the neighboring feudalsuperiors. By an edict of Phillip Augustus, in the year 1190,those bailiffs were appointed in all the principal towns of thekingdom." Millar's Hist. View of the Eng. Gov., vol. ii., ch.